From the Executive Director
Are your FOI time extensions invalid?
Under the Victorian FOI Act an agency or Minister dealing with a request for access must notify an application of a decision as soon as practicable, but not later than 30 days after the day on which a valid request is received. This is stated in s 21 of that Act.
Section 21 also sets out two ways in which an "agency or Minister may extend the period for deciding a request". This language inherently implies some form of determination or decision by an agency or Minister give that they have a power to effect that extension.
The first method is by extending that period by up to no more than 15 days if consultation is required under one of seven listed exemption provisions. This can be done unilaterally and does not require any consent of the applicant.
The second method by which an agency or Minister may extend the period for deciding a request is "by a period of not more than 30 days, as agreed by the applicant" (s 22(2)(b)). That period can be further extended with the applicant's agreement any number of times (s 22(3)).
That all seems straightforward so far. However, during a recent VCAT case we came across a potentially systemic issue that might exist across numerous Victorian agencies when extending the decision making period. It relates to statutory compliance with all of the legal requirements stated in the FOI Act when extending time.
Common practice
Where agencies extend time with the agreement of the applicant, in our experience they write to the applicant and seek consent for an extension (usually the full allowed 30 days more). If the applicant is agreeable, they usually send an email confirming that agreement.
At that point, given the agreement reached between the applicant and the agency, and without anything further, the agency diligently continues processing the request and (hopefully) makes a decision within the agreed extended period.
Hidden risk of invalidity
In that scenario, there is a risk that the agreed extension may not have been properly effected. This is because there are further statutory requirements which had not been complied with to put into effect that the agency has extended the period. Just because the applicant has agreed, at that point there is nothing to evidence that the agency actually made a determination or decision to to extend the decision making period.
The FOI Act stipulates in s 22(4):
An agency or Minister must notify the applicant in writing if the period for deciding a request is extended or further extended under this section.
Therefore, there is a further step that needs to be effected so that the agency can demonstrate that it has in fact exercised the power to extend time; it has to send a notice to the applicant notifying the extension.
The FOI Professional Standards also kick in here and set out what that written notification must contain.
In the VCAT matter in which we were involved, the agency failed to notify the applicant of the extension of time, despite the fact that the extension had been agreed to by the applicant. That meant that the period had not been extended in accordance with the FOI Act. Why was that important to the facts of that case? Here's what happened.
The applicant made an FOI request on 25 November 2025. That meant that a decision was due on 25 December 2025 - Christmas Day!! By operation of provisions in the Interpretation of Legislation Act 1984, that meant that the decision was actually due on the next business day which was 29 December 2026.
In mid-December, the applicant agreed to the agency's request for a 30 day extension of the decision making period. This brough the due date to 28 January 2026. This meant that everyone should have been of the belief that if the agency did not make a decision on the request by 28 January 2026, a "deemed refusal" decision would have existed at the end of that day, and the applicant could have applied to VCAT for review on 29 January 2026. But the applicant miscalculated and started their VCAT review application on 28 January 2026 - what was believed by the agency to be one day early. It argued that as no reviewable "deemed refusal" decision existed at that time, VCAT had no jurisdiction; it made an application to VCAT to dismiss the proceeding.
However, as the agency had not sent a notice to the applicant completing the statutory steps to effect the extension of time, the Tribunal was of the view during the hearing that the agency had not actually extended time. This meant that when the VCAT application was commenced, there was a deemed refusal in existence and so the Tribunal had jurisdiction. The agency withdrew its dismissal application and the matter is now continuing.
Take away point
Any extension of time under s 21, whether by agreement with the applicant or not, needs to be confirmed by a written notification by the agency to the applicant to avoid any risk of that extension not being properly effected and possibly being invalid.
If this raises any issues or concerns for your agency, feel free to contact us.
Mick Batskos
Executive Director
